Tort Law in Latin America: In Search of an Identity

This paper presents a novel view of Latin American tort law, with the aim of highlighting opportunities and challenges for its harmonization across the region. Initially, it seeks to identify three distinctive features of Latin American law: Its foundation on Roman law, its basis in the civil law tradition with codification, and its political and institutional instability. Despite these inf luences, the evolution of tort law in the region is characterized by a lack of systematization, with judicial intervention playing a significant role in shaping the law through case law rather than formal precedent. The paper then explores potential methods for systematizing tort law, including codification and doctrinal codification, and assesses their viability in the Latin American context. Furthermore, the paper examines the mutual inf luences among Latin American countries, illustrating this with examples such as the emerging trend towards punitive damages and the recognition of loss of a chance as a compensable harm. Then, the paper shows the inf luences of Latin American scholarship on Chilean law concerning general presumptions of fault in dangerous activities, concurrent obligations, and non-pecuniary damages in collective consumer procedures. These case studies highlight both the convergence and divergence in tort law approaches within the region. The analysis suggests that while punitive damages are gaining traction in some jurisdictions, they remain contentious and not uniformly accepted. Similarly, the adoption of doctrines such as ‘loss of a chance’ ref lects an ongoing process of legal adaptation. The paper concludes that the distinct identity of Latin American tort law is still forming, with significant potential for reform and harmonization. However, such efforts must navigate traditional resistance and the unique socio-political landscape of the region.